Summary: Mr X complains that the Council has failed to adequately deal with persistent and longstanding noise from his neighbour’s donkeys, cockerels and dogs. He says this has caused inconvenience and disturbance which affects his sleep and impacts on his quality of life. He says the Council’s delay in adequately dealing with the noise has caused distress and anxiety. The Ombudsman does not find fault with the Council.

The complaint

1. The complainant, who I refer to here as Mr X, complains that the Council has failed to adequately deal with persistent and longstanding noise from his neighbour’s animals.
2. Mr X says this has caused inconvenience and disturbance which affects his sleep and impacts on his quality of life. He says the Council’s delay in adequately dealing with the noise has caused distress and anxiety.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
5. I have considered the relevant legislation, statutory guidance and policies, set out below.

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What I found

Legislation

6. Under the Environmental Protection Act 1990, if noise causes a statutory nuisance, authorities are required to take action to ‘abate’ (reduce) such nuisance. To be a statutory nuisance, the law says the noise must be unreasonable and must substantially interfere with the use or enjoyment of a home, or must injure, or be likely to injure, health.
7. Councils are required to investigate complaints of noise nuisance. A council will gather evidence to establish whether or not the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it will serve a noise abatement notice requiring the nuisance to be stopped. Failure to comply with an abatement notice can result in court action and a fine.
8. There is no fixed point at which noise becomes a statutory nuisance. Councils will rely on professional environmental health officers to gather and assess evidence of noise and decide if a statutory nuisance exists. To do this, officers may, for example, ask the person complaining of nuisance to complete and return diary sheets detailing the noise.
9. Officers may also set up recording equipment in the complainant’s home. Officers will normally visit the complainant’s home and/or a nearby property to identify any noise and its source. In assessing the noise, officers will take account of several factors such as what is causing the noise, the local area, time of day, and frequency and duration of the noise.
10. Councils must also consider how the noise affects the average person, who may not share the specific circumstances of the complainant. In practice, this means councils have some discretion deciding whether noise is a statutory nuisance. The primary aim of any action is to modify the behaviour of the perpetrator. However, a council cannot take action against the perpetrators of noise without robust evidence.
11. Councils’ procedures for dealing with noise complaints typically include contact with both parties, use of diary sheets, officer visits, and/or use of recording equipment. If people return diary sheets the case officer will investigate, unless the sheets show there is unlikely to be a nuisance. Further investigation normally includes letters to both parties but may be ‘case specific’. Councils will close a case if further ‘reasonable investigation’ does not show a statutory nuisance exists. On closing a case, Councils should give the complainant information about how they may take private action in the courts.
12. The Noise Act 1996 addresses ‘noise at night’. It says that noise at night can come from dwellings, pubs, bars and nightclubs, and is between 11pm and 7am. It says that noise from a dwelling includes the garden or yard of the property.

The Council’s procedure

13. The Council has a procedure for investigating noise complaints. This procedure refers to all the relevant legislation above.
14. The procedure gives examples of the factors to be considered when assessing a noise nuisance, including volume, duration, frequency, time of day, character of the noise, if the activity is malicious, and the character of the area.

What happened

15. Mr X lives in one half of a semi-detached house in the countryside. There are no other houses nearby. The properties are surrounded by fields. Mr X’s next-door neighbour, N, is a smallholder who keeps donkeys, cockerels and dogs. Mr X says when he moved into the property in 2005, N – who already lived there – had cockerels and dogs. Mr X is not sure if N had donkeys at that stage.
16. There is a history of noise complaints made by Mr X against N due to noise from the animals. Mr X’s recent noise complaints about N’s animals in 2016 and early 2017 ended when the Council found no statutory nuisance on either occasion.
17. In November 2017, Mr X complained to the Council about the noise from N’s animals. The Council sent him diary sheets to fill in.
18. In December, Mr X sent the completed diary sheets back to the Council.
19. In February 2018, the Council installed noise monitoring equipment in Mr X’s house for a week. The Council analysed the noise recordings. It said the noise from the donkeys and dogs was rarely intrusive and not persistent. It said the noise from the cockerels was very quiet and not a nuisance. Overall, the Council found the noise in keeping with character of neighbourhood, and determined there was no statutory noise nuisance.
20. In late March, the Council installed noise monitoring equipment in Mr X’s house again, this time for two weeks. The Council analysed the recordings. It said overall the noise was similar to previous recordings. It said the noise was rarely intrusive, not persistent, and in keeping with character of neighbourhood.
21. The Council told Mr X that it had not found there was a statutory noise nuisance.
22. Mr X emailed the Council, saying he disagreed with its findings. An email discussion followed. The Council said that the recordings in April showed there had been a reduction in noise from the February recordings.
23. In May, Mr X emailed the Council. He disagreed with the Council that human-introduced farmyard animals are normal, natural and indigenous. He said N’s use of their half of the semi-detached property as a farm is inappropriate, unreasonable and unacceptable.
24. In June, the Council installed noise monitoring equipment for a week. It analysed the recordings. It found that noise from the donkeys was loud at times but short-lived and not persistent. It found that the noise from the cockerels was very quiet, and found that natural bird song was louder. It noted occasional barking from dogs, but found this was short-lived and not persistent.
25. In July, the Council visited N. They discussed ongoing management of the animal noise.
26. The Council then wrote to Mr X. It said that the latest noise recordings still did not constitute a statutory noise nuisance. It said its decision was based on visits to Mr X and to N, noise recordings, and diary sheets.
27. The Council said it had agreed further informal measures with N to minimise disturbance, which had already been put in place. It said the dogs had been relocated within N’s property, and the donkeys had been relocated to a field further away. The Council said it felt these measures were reasonable and were done as a goodwill gesture by N.
28. The Council noted that neither Mr X nor N were happy or satisfied, but the Council felt this was a sensible and reasonable solution.
29. The Council said it had to take into account the noise of the environment of the area: it is rural and agricultural, where running a smallholding with some animals is not unreasonable.
30. The Council said if Mr X wanted to take his complaint further, he could take private legal action in the magistrates court (and enclosed a booklet on how to do this), or he could formally complain to the Council, or he could approach the Ombudsman.
31. In August, Mr X emailed the Council, disagreeing with its findings. The Council called Mr X. It said it could do no more. It said N had made a lot of compromises to try and mitigate the noise informally. It said no formal action could be taken because a statutory noise nuisance had not been found.
32. Mr X said he was happy with the compromises but would monitor the situation and make a complaint if he was not happy.
33. In September, the Council closed the case.
34. Later in September, Mr X formally complained to the Council. He complained about the noise from N’s animals. He said the Council failed to act on evidence of a statutory nuisance, and failed to act in accordance with statutory guidance for noise at night.
35. The Council responded in October. It said a statutory noise nuisance had not been established. It said it had extensively investigated his noise complaints. It said the statutory guidelines for noise at night primarily relates to noise from pubs and clubs in towns, and is not applicable here. It said it had not adopted this piece of legislation.
36. The Council said its noise recording equipment is one of the best options for measuring noise, and meets legal requirements. It said the equipment is properly calibrated, serviced, maintained and was correctly installed in his property.
37. The Council said it was satisfied that it had investigated and handled Mr X’s noise complaint in line with legislation, guidance, and its own policies.
38. In November, Mr X asked that his complaint be dealt with at stage two of the Council’s complaints procedure. He said the Council did not answer the “numerous detailed and itemised salient failings” he had listed in his emails to the Council. He said the Council’s response was too generalised.
39. Mr X said it was too over-simplistic to say it is a rural/agricultural location and is therefore suitable to keep large quantities of “nuisance animals” like donkeys and cockerels. He said the recorded evidence clearly showed noise levels in excess of accepted legal and national levels.
40. Mr X said the Council had misinterpreted legislation about noise at night. He said the legislation is clearly intended for any late-night noise anywhere in the country. He said the noise recording equipment only gives a snapshot and therefore is not fit for purpose.
41. Mr X said the Council’s position of measuring noise (cockerel) against background noise (dawn chorus) is flawed. He said cockerel and donkey noise is not normal animal background noise according to the Chilterns Society guidance on local indigenous wildlife to be expected in this area.
42. The Council replied to Mr X in November. It said that its stage two response would not be any different to its stage one response, so the Council was happy for Mr X’s complaint to come straight to the Ombudsman.
43. Mr X was not happy with this. The Council replied, saying its position would not change. It said because the matter was causing Mr X distress, it had offered a more direct route to the Ombudsman rather than pursuing his complaint at stage two.
44. In February 2019, Mr X complained to the Ombudsman.

Analysis

The Council’s finding of no statutory nuisance

45. Mr X disagrees with the Council’s decision that there is no statutory noise nuisance. He says the Council ignored decibel levels.
46. The Council’s analysis of the recordings clearly shows decibel levels and how they were considered as part of the investigation.
47. Mr X says the decibel levels show that there is a statutory nuisance. The Council disagrees.
48. The Council’s policy and the law both outline what factors should be considered as part of an investigation into whether a noise constitutes a statutory nuisance.
49. I find that the Council’s investigation shows that it considered all these factors. I also find that the Council considered an appropriate range of evidence: diary sheets, noise recordings, and site visits by a Council officer.
50. I find that the Council considered and assessed Mr X’s noise complaint in line with legislation and its own policy, considering all relevant factors. The Council decided there was no statutory nuisance. This is a decision the Council is entitled to make. For this reason, I find no fault with the Council.

The area and the animals

51. Mr X says it is too generalised and over-simplistic for the Council to say it is a rural/agricultural area and is therefore suitable for anyone to keep large numbers of ‘nuisance’ animals.
52. Mr X says donkeys and cockerels are not animals one would expect in the area, which is an arable area with cattle farming. He says no animals are kept in the area apart from some cows and sheep. He says donkeys and cockerels are not natural to the area, and so their noise is not normal in the area.
53. N is registered a smallholder with the Department for Environment, Food and Rural Affairs (DEFRA). The Council found that N’s animals are in keeping with the character of the neighbourhood. It says, “the area is heavily rural agricultural with sheep and cattle close, in adjacent fields”.
54. In 2013, Natural England published a document about the profile of the Chilterns area. This says, “Smallholders and non-farmers own a significant proportion of land and may potentially convert agricultural land to non-productive land uses, for example horse paddocks and gardens”.
55. In my view, this proves that smallholders are significant in the area, and therefore the Council is right to say that N’s animals are in keeping with the character of the area.
56. Mr X talks about indigenous animals (wildlife) and animals used in farming (sheep, pigs and cattle). This is not relevant to the Council’s investigation of whether the noise from N's animals is a nuisance, because N has a smallholding. The animals are not wildlife and are not used in farming. N is entitled to keep the animals as a smallholder.
57. I find that the Council is right to say that N’s animals are in keeping with the character of the area. For this reason, I do not find the Council at fault.

Noise at night guidance

58. Mr X says the Council has misinterpreted the guidance for noise at night. He says the regulations are for any disturbance between 11pm and 7am.
59. The Council’s complaint response said the Noise Act 1996 primarily relates to noise in towns from pubs and clubs. It said it did not adopt this piece of legislation.
60. There is no fault in the Council’s procedure for investigating noise nuisances insofar as it refers to and complies with the Noise Act 1996.
61. I agree with the Council that the noise at night part of the Noise Act 1996 primarily relates to noise from clubs and pubs in towns. However, it does also refer to noise from dwellings, including gardens and yards.
62. The Council says it refers to the Noise Act 1996 to make sure that “due consideration is given to the broader elements and principles of the Act” when it investigates any noise nuisance complaints. 
63. I do not find the Council at fault for saying it did not adopt this piece of legislation. The Council’s procedure refers to the Noise Act 1996, and its investigation into Mr X’s complaint complied with the law.
64. Also, I find that the Council’s investigation considered the time of day as required by law, and by its own procedure. The Council did not consider that the noise constituted a statutory nuisance.
65. I find that the Council’s investigation and decision were in line with the law and the Council’s own policy. For this reason, I do not find the Council at fault.

Noise monitoring equipment

66. Mr X complains that the equipment did not work properly and that it only records a minute or two at a time so cannot show persistence. He complains that he had to get up and press a button each time there was a noise in order to record that noise. He wants the equipment to record consistently for hours to give a more accurate recording of persistence.
67. The Council says that recording continuously could breach N’s human rights about respecting the privacy of people in their own homes. It says this would be a “serious misuse of powers which [it] must strongly guard against”. I agree with the Council.
68. Equipment was installed in Mr X’s home on three occasions. The Council says all recordings were made and recorded without any issue.
69. In February, there were 48 recordings made over seven days. In March/April, there were 142 recordings made over 15 days. In June, there were 132 recordings made over seven days.
70. The Council’s analysis of each recording clearly indicates when it was recorded and for how long. I have seen no indication of problems with the recordings. The Council was able to analyse these with no problems.
71. The Council says its equipment is specifically designed for noise complaints. It says the equipment is annually calibrated and maintained by the manufacturer. It says the equipment is also calibrated manually at the start of each investigation.
72. For these reasons, I do not agree that the equipment is not fit for purpose.
73. In my experience, noise equipment almost always has to be activated by the person who wants to record the noise, in the same way as they would when completing diary sheets to record the noise. The fact that Mr X had to press a button is not evidence that the equipment is not fit for purpose: it is how the equipment works.
74. I do not think it is reasonable or realistic to expect a council to listen to hours and hours of recordings in order to identify noise at certain points. It is my view that it is the complainant’s responsibility to record the noise they want to complain about, whether that is by writing it down on a diary sheet or by pressing a button.
75. For these reasons, I do not find the Council at fault.

Failing to answer Mr X’s questions

76. Mr X complains that the Council has not answered each of his itemised questions that he sent the Council in three emails.
77. Mr X lists very fine points of detail which essentially show his disagreement with the Council’s decision that there is no statutory nuisance.
78. The Council responded to Mr X’s emails succinctly, saying that it did not find a statutory nuisance and giving the reasons for its decision.
79. I do not find the Council at fault for not answering every single question or point that Mr X raised. This is because each point is part of his disagreement with the Council’s findings, which the Council responded to.

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Final decision

80. I have completed my investigation and I do not uphold Mr X’s complaint. This is because there is no evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman